Lower v. Segal

The opinion of the court was delivered by Garrison, J.

The cause of action in this case arose in> Pennsylvania. The plaintiff is an administratrix appointed by the courts of New Jersey. The statute of this state providing for the recovery of damages in cases where the death of a person is caused by wrongful ■ act, negligence or default- (Rev., p. 294), confers no right of action in such case. It creates a rule unknown to the common law, and is, therefore,, inoperative for the redress of wrongs done in other jurisdictions. For a like reason the statute of Pennsylvania, propriavigore, confers no right to sue in this state for a cause of action created by that jurisdiction and occurring there. The statute of Pennsylvania is, however, not repugnant to our domestic policy, as is evinced by our having modified the common law upon like principles in the interest of our own citizens. It is, therefore, the duty of our courts to recognize and enforce the rule of the sister commonwealth. Wright v. Remington, 12 Vroom 48 .

If, however, the statutes be variant as to the form of the remedy, that given by the statute from which the right of action is derived will be enforced, unless it violates some rule or policy of the forum. A procedure that takes a right of action from the statute of one jurisdiction and a form of redress from that of the other, lacks the legal justification of either. That is the case here. The suit is brought by a personal representative, which is the proper form under our statute; but the action is not under our statute, but under that'of Pennsylvania, where the widow and not the personal representative is given the right to sue. Penna. Stat., Pamph. L. 1851, p. 674, § 19; Id. 1855, p. 309, § 1. The construction put upon these statutes by the courts of Pennsylvania is in no state of uncertainty. Railway Company v. Decker, 84 Pa. St. 419, 425; Birch v. Pittsburgh Railroad Co., 30 Atl. Rep. 826 .

*69 In these cases it is said, referring to the provision of the act ■of 1855, “ if the deceased leaves a husband, he alone is clothed with the right of action • if the wife is a survivor, she is entitled to bring suit.”

Judicial notice is taken of the law of Pennsylvania as illustrated by these reported cases under the twenty-third section ■of our act concerning evidence, which provided that “the reports of the judicial decisions of other states * * * may ,be judicially noticed by the courts of this state as evidence of the * * * judicial construction of the statutes and laws ■thereof.” Gen. Stat., p. 1401.

The right of action being vested in the widow, she is the •only person who can maintain the suit, whether in the domestic tribunals or elsewhere, since she is everywhere the widow of the husband whom she survives.

Erom these considerations it is clear that the plaintiff can■not, as administratrix, maintain this action, and upon this ground the demurrer is sustained. It may be well to say that so much of the declaration as relates to the statutory duty of the constructors of buildings in Pennsylvania, is surplusage and the proper subject of a motion to strike out as an embarrassment to proper pleading.

No point is made of the circumstance, patent upon the face ■of the declaration, that the year within which, by the Pennsylvania statute, the action could be brought had expired before the bringing of this suit by the administratrix. The •questions of construction and pleading in such case are, therefore, not sub judiee.